SALVADOR MORALES a/k/a Simon Pirela v. Donald Vaughn, et al

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3684
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SALVADOR MORALES a/k/a Simon Pirela
v.
DONALD VAUGHN, et al;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
THE DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY
SIMON PIRELA a/k/a Salvador Morales,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 2-90-cv-05105)
District Judge: Honorable Joel H. Slomsky
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Argued January 12, 2015
Before: AMBRO, FUENTES and ROTH, Circuit Judges
(Filed: July 20, 2015)
Arianna J. Freeman, Esq. (Argued)
Keisha N. Hudson, Esq.
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant

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Thomas W. Dolgenos, Esq. (Argued)
Molly S. Lorber, Esq.
Susan E. Affronti, Esq.
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellees
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OPINION*
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ROTH, Circuit Judge
Simon Pirela, aka Salvador Morales, appeals the District Court’s order, denying
his habeas petition. He argues that counsel was ineffective for failing to raise a
diminished capacity defense at the guilt phase of his trial. Because we find that Pirela
suffered no prejudice, we will affirm.
I. Background
On August 29, 1982, Pirela brutally murdered Georgie Figueroa. After leading
Figueroa into a trap, Pirela ordered his brother “Dency” to kill Figueroa. When Dency
balked, Pirela slapped him in the face and stabbed Figueroa repeatedly in the chest,
eventually announcing that Figueroa was dead. Somehow, Figueroa attempted to escape.
Upon discovering this, Pirela handed a knife to another brother “Cobo,” who stabbed
Figeuroa in the back several times, killing him. Pirela then told his associates to “clean
up” and “get rid of the body.” When the body was discovered by the police on
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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September 9, 1982, the autopsy revealed that Figueroa had been stabbed at least twenty
times: eight times in the front and twelve in the back.
On May 18, 1983, Pirela and Cobo were convicted of murder and conspiracy to
commit murder.1 On direct appeal, the Pennsylvania Supreme Court affirmed Pirela’s
conviction and sentence.2 Pirela argued that the trial court had erred by refusing to
continue the sentencing hearing to allow Pirela’s counsel to consult Dr. Gino Grosso, a
court-appointed psychiatrist who had examined him prior to trial. The court held that
Pirela “gave no indication to the [trial] court (nor to this Court) as to how the
psychiatrist’s testimony would have been beneficial,” and “made a knowing, intelligent
and voluntary waiver, on the record, of his right to present any evidence at the sentencing
hearing.”3
In 1987, Pirela filed a petition for state collateral review. New counsel was
appointed and argued that trial counsel had rendered ineffective assistance by failing to
present mitigating evidence at the sentencing hearing. The petition was denied and the
denial was upheld on appeal.4 In 1990, Pirela filed a petition for a writ of habeas corpus
in the United States District Court for the Eastern District of Pennsylvania; the petition
was suspended pending exhaustion of state court remedies.
On June 8, 1992, Pirela filed a second state post-conviction relief petition,
alleging, inter alia, that trial counsel was ineffective for failing to procure the trial
1 The subsequent procedural history is long, and complicated, so for brevity we discuss
only that which is relevant to the issue before us.
2 Commonwealth v. Morales, 494 A.2d 367 (Pa. 1985).
3 Id.
4 Commonwealth v. Morales, 565 A.2d 820 (Pa. Super. 1989).

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testimony of Dr. Grosso. On September 17, 1997, the Pennsylvania Supreme Court held
that all of Pirela’s claims were meritless or previously litigated with the exception of
prosecutorial misconduct at sentencing.5 With respect to Dr. Grosso, the Pennsylvania
Supreme Court analyzed only a claim of ineffective assistance at the sentencing phase.
The court found that the claim was both previously litigated and meritless, because the
Pirela could only speculate that Dr. Grosso’s testimony would be beneficial and Pirela’s
waiver of his right to present mitigating evidence at sentencing was “knowing, intelligent
and voluntary.” 6
On January 17, 2001, Pirela reopened the federal habeas proceedings, but they
stalled for nearly six years.7 In October of 2008, Pirela’s habeas case was assigned to a
Magistrate Judge for a Report and Recommendation. On April 29, 2013, the Magistrate
Judge recommended that the petition be dismissed with prejudice, reasoning that (1) the
claim was defaulted because “[i]n state court, [Pirela] did not claim that counsel was
ineffective in failing to present a diminished capacity defense,” and (2) the claim was
meritless because Pirela was unable “to establish that at the time of Mr. Figueroa’s death,
[Pirela] was suffering from a mental disorder that specifically affected the cognitive
functions of deliberation necessary to formulate a specific intent to kill.” On May 22,
5 Commonwealth v. Morales, 701 A.2d 516 (Pa. 1997).
6 Id. at 521.
7 The proceedings stalled while Pirela sought relief in the state courts from a death
sentence in another murder conviction. On April 30, 2004, the court presiding over the
other matter ruled that Pirela lacked the mental capacity to justify the death penalty under
Atkins v. Virginia, and was thus ineligible for execution under the Eighth Amendment.
The Pennsylvania Supreme Court affirmed on August 20, 2007, in an unpublished, per
curiam order.

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2013, the District Court approved and adopted the Report and Recommendation, with one
modification. The court held that the Magistrate Judge had applied an incorrect standard
of review, but concluded nevertheless that the analysis was the functional equivalent of
the de novo analysis required by the correct standard.
II. Discussion
We exercise plenary review over the District Court’s habeas decision.8 Because
this habeas proceeding began before the passage of the Antiterrorism and Effective Death
Penalty Act of 1996,9 we apply a de novo standard of review to state court rulings
regarding pure legal questions and mixed questions of law and fact.10
A. Pirela’s Claim Was Not Procedurally Defaulted
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust
available state remedies, thereby giving the State the opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.”11 To demonstrate that his claim was
not defaulted, Pirela must demonstrate that the claim in his habeas petition “was the
substantial equivalent of that presented to the state courts,”12 including both the “legal
theory and supporting facts.”13 Pirela must also demonstrate he raised his claim at each
8 Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009).
9 Woodford v. Garceau, 538 U.S. 202, 207 (2003).
10 Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
11 Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation marks and internal citation
omitted).
12 Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
13 Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996), abrogated on other grounds by
Beard v. Kindler, 558 U.S. 53 (2009).

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available level of appellate review,14 giving the “state courts . . . an opportunity to correct
the constitutional violation in the first instance.”15
In his second petition for state collateral review, Pirela had alleged that trial
counsel was ineffective for “failing to preserve his right to the assistance of a psychiatrist
at trial and sentencing” by failing to consult with court-appointed psychiatrist Dr. Grosso
either before or during the guilt phase proceedings. The state review court had ordered
Pirela to submit a brief with more specificity regarding “facts that would support
diminished capacity or other psychiatric defense.” While the thrust of Pirela’s responsive
argument related to sentencing, Pirela mentioned diminished capacity, distinguished
between trial and sentencing, and discussed mental health evaluations that suggested his
regular drug use could have reduced his mental capacity. Admittedly, the brief never
identified diminished capacity as a defense to the murder charge and never described how
his drug use could have prevented Pirela from forming the specific intent to kill. Pirela,
however, need not have proven the merits of his case to avoid procedural default; he must
only have raised it.16
After the state petition was denied, Pirela appealed to the Pennsylvania Supreme
Court, where he once again advanced the ambiguous psychiatric defense theory based on
his counsel’s failure to consult with Dr. Grosso before trial. The Pennsylvania Supreme
Court did not read Pirela’s brief to raise a guilt-phase issue and ruled again on the
14 O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
15 Id.
16 See Baldwin, 541 U.S. at 29.

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sentencing claim.17 Nevertheless, the fact that the court did not address the guilt phase
claim does not render it procedurally defaulted. Pirela argued for ineffectiveness at both
trial and sentencing, and accordingly, we conclude that guilt phase ineffectiveness was
fairly presented.
B. Pirela Suffered No Prejudice Due to His Counsel’s Failure to Investigate
To succeed on an ineffective assistance of counsel claim, Pirela must show (1) that
his counsel’s performance was deficient under “an objective standard of reasonableness,”
and (2) that he was prejudiced by counsel’s failures.18 To demonstrate prejudice, Pirela
must show that there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”19
Pirela argues that if the original jury had been presented with evidence of his
mental health, drug usage, and diminished intellectual capacity, there is a reasonable
probability that the jury would have determined that he lacked the ability to formulate a
specific intent to kill.20 Specifically, Pirela argues that his trial counsel failed to even
investigate a diminished capacity defense. Certainly, we have found ineffective
assistance in cases where counsel fails to adequately investigate.21 There was, however,
no prejudice here.
In order to succeed on a diminished capacity defense, Pirela must be able to
demonstrate that, although he intended the attack, he did not and could not have intended
17 Morales, 701 A.2d 516.
18 Strickland v. Washington, 466 U.S. 668, 688 (1984).
19 Id. at 694.
20 Id.
21 Jacobs v. Horn, 395 F.3d 92, 101 (3d Cir. 2005).

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it to result in Figueroa’s death.22 Such a finding is exceedingly unlikely. A jury would
have been presented with the facts that Pirela ordered Dency to “Kill Georgie!”, slapped
Dency for balking at the order, stabbed Figueroa repeatedly himself. Then, after
announcing that Figueroa was dead, and discovering that Figueroa yet lived, Pirela
handed Cobo a knife to kill Figueroa again, and finally ordered his associates to dispose
of the body. It is almost unimaginable that a jury could find specific intent lacking in this
case.
II. Conclusion
For the above reasons, we conclude that Pirela suffered no prejudice due to his
trial attorney’s failure to investigate his meritless diminished capacity defense. We will
affirm.
22 Commonwealth v. Bracey, 795 A.2d 935, 946 n.10 (Pa. 2001).

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AMBRO, Circuit Judge, dissenting
My colleagues and I agree that Mr. Pirela’s ineffective-assistance-of-
counsel claim is not procedurally defaulted. We part ways, however, in my colleagues’
rejection of his claim on the ground that he has failed to demonstrate prejudice. Because
I believe Pirela is entitled to an evidentiary hearing on this question, I respectfully
dissent.
Counsel’s performance in this case is a textbook example of deficiency; it is one
of the more appalling cases of so-called legal representation I have seen. To provide a
client with constitutionally effective assistance, “counsel must, at a minimum, conduct a
reasonable investigation enabling him to make informed decisions about how to best
represent his client.” Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (emphasis in
original). This investigation must include “an independent examination of the relevant
facts, circumstances, pleadings and laws.” Foster v. Dugger, 823 F.2d 402, 405 n.9 (11th
Cir. 1987). It is deficient for a lawyer not to investigate a potential diminished-capacity
defense where “he knew or should have known from [the client’s] behavior and from his
interaction with [the client] that he should initiate some investigation of a psychological
or psychiatric nature.” Jacobs v. Horn, 395 F.3d 92, 103 (3d Cir. 2005) (internal
quotation marks omitted).
Here, counsel erred not merely in failing to conduct an adequate investigation into
his client’s diminished capacity, but in failing to conduct any pretrial investigation at all.
Had counsel taken the time for the most rudimentary interview of his client, he would
have known of a diminished-capacity defense with potential merit. See, e.g.,

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Commonwealth v. Pirela, No. 2143-45, slip op. at 19 (Pa. Ct. Comm. Pl. Apr. 30, 2004)
(crediting the testimony of “the parole agents [at the prison] who worked with Pirela
[who] uniformly report[ed] him to be ‘special needs’, speaking like a child of about 10 or
12 years old,” and the testimony of “[o]ne counselor . . . that Pirela’s ‘degree of
difficulty’ was unique among the prisoners that [she] dealt with and no one else suffered
with a similar ‘impairment’”). Conversations with Pirela’s family would have revealed
the same. See J.A. 1543–50 (affidavits of numerous family members stating that they
have known of Pirela’s intellectual challenges since he was a child and that they would
have offered to testify on Pirela’s behalf had they been asked by counsel to do so).
Although the “failure to investigate a critical source of potentially exculpatory
evidence” can never be characterized as “strategy,” United States v. Bayne, 622 F.2d 66,
69 (3d Cir. 1980) (per curiam), we need not engage in even minimal speculation as to
counsel’s gross neglect. After failing to speak to Pirela for the first time until just a few
days before trial and Pirela’s family members at all, it first occurred to counsel midway
through trial to have his client evaluated by a psychiatrist. Not only was the halfhearted
effort too late, counsel failed to heed the judge’s warning to have the psychiatrist ready to
testify on the first day of his client’s case-in-chief. That opportunity came and went with
counsel introducing no evidence and calling no witnesses on his client’s behalf. At a
post-trial hearing, recalling his failure to secure a psychiatric testimony on time, counsel
casually remarked, “Now that was a mess.”
Because of his failure to prepare even minimally for Pirela’s case, counsel never
learned of the overwhelming evidence that Pirela was suffering from severe intellectual

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handicaps. Not only is Pirela “well within the mentally retarded range” and/or at the
level of a young child on every standardized test, but PET and MRI scans reveal
“egregious[] abnormal[ities]” in his brain, including “globally decreased function in
almost the entire cortex.” Such evidence of “mental retardation, brain damage and other
mental health and cognitive impairments” is “the specific type [of evidence] in which [a]
diminished capacity defense as to the [victim’s] murder . . . is appropriate” under
Pennsylvania law. Horn, 395 F.3d at 105. Several experts have opined that a brain with
such defects as Pirela’s would not be capable of the premeditation and forethought
necessary to formulate specific intent for first-degree murder.
There also is compelling evidence in the record that Pirela could have presented a
viable voluntary intoxication defense based on his addiction to a dangerous cocktail of
alcohol and drugs (the latter a mix of heroin, Quaaludes, cocaine, and valium). See
Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa. 2004) (holding that “a showing of
voluntary intoxication can . . . reduce the crime of murder from first to third degree”).
One medical doctor submitted an affidavit stating that Pirela’s substance abuse “could by
itself have caused certain forms of organic brain damage . . . [and] would be likely to
have significantly magnified the physical effects of any pre-existing combination of
personality disorder and organic brain damage”; and a second doctor testified at an Atkins
hearing in another case involving Pirela “that the vast majority of the brains with this
degree of impairment could not . . . make a goal-directed plan and carry it out after a
substantial delay in time.”

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That counsel had no knowledge of any of the information relevant to either a
diminished-capacity or voluntary-intoxication defense became clear to everyone in the
courtroom (except perhaps his client with a 57-point performance IQ) during the penalty
stage. After announcing that he still had not spoken with the court-appointed psychiatrist
and he did not know whether his “client [was] on drugs,” counsel could muster up only
the following argument as to why the jury should spare his client’s life:
[Y]ou are facing a very, very serious problem. Not one that is
insurmountable, but one that is very difficult. I was walking around this
morning trying to figure it out to approach it and what to say, and it came to
my mind out of the clear blue sky that the quality of mercy is not strained,
it droppeth as a gentle rain from heaven.
I think that’s about the best instruction that any Judge could give a jury in
the determination that you have now to make. My client, Simon Pirela has
refused me and His Honor, in your absence to [take] the stand and answer
my questions for your benefit as to where he came from, how old he is,
what his childhood was like, who his parents were, how he grew up. All
the things necessary for you to determine whether under those
circumstances, you could find mitigating circumstances, evidence of
mitigating circumstances which would counteract in your mind and balance
in your mind the aggravating circumstances of his having already been
found guilty by a jury in another murder case. He would not take the stand.
. . . .
This I do know and can say, under no circumstances do you to have to—no
circumstances does the law require you to give the death penalty unless you
decide in your own mind that you should and you will regardless of the
circumstances. This question is entirely within your discretion and no
further questions can be asked of you no matter what your decision is in
this case.
And I ask you to be merciful, to be thoughtful, plus do what in your
conscience is the best thing under these circumstances.

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Again not a single piece of evidence was introduced or witness was called, this time for
why the mitigating circumstances in the case required the jury to save his client’s life.
In brushing aside counsel’s offensive performance and concluding that “[i]t is
almost unimaginable that a jury could [not] find specific intent,” the majority cites “the
facts that Pirela ordered Dency to ‘Kill Georgie!’, slapped Dency for balking at the order,
stabbed Figueroa repeatedly himself[,] . . . handed Cobo a knife to kill Figueroa again,
and finally ordered his associates to dispose of the body.” Majority op. at 8 (emphasis in
original). But it ignores the shaky evidence on which these so-called “facts” are based,
including that they were elicited from the testimony of two juveniles, themselves
implicated in Figueroa’s murder and who had every reason to lie. Moreover, virtually
every aspect of these two witnesses’ trial testimony differed from their earlier statements
to police or made under oath, and one of the two witnesses, 16-year-old Lisa Colon (15
years old at the time of the murder), testified at Pirela’s preliminary hearing that she did
not “[a]t any time . . . see him do anything with the knife.”1 That a jury could hear
1 Among the inconsistences in Lisa Colon’s story were the order in which people
arrived at her house the night of the murder, who was present in the basement when
Figueroa was first stabbed, whether she saw anything that happened, whether she heard
screams while she was waiting upstairs, and who then stabbed Figueroa (ultimately
killing him) in the living room.
When asked at trial “[h]ow many different stories [he] t[old] police,” the second
witness, 17-year-old Eddie Colon (16 years old at the time of the murder), answered
“[t]hree,” and admitted that he only agreed to testify against Pirela in exchange for
prosecutors’ agreement to allow him to plead guilty in another murder case to “[t]hird
degree instead of the electric chair.” Among numerous other things, Eddie Colon
admitted on the stand that he had previously concocted a made-up story about how his
sister was sleeping at the time of Figueroa’s murder and came down the stairs only when
she heard screams, at which point she was threatened with a gun by Cobo (another boy

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evidence of intent does not mean it would have found this evidence credible. And even if
the jury believed some or all of these facts to be true, the majority fails to explain why
they are necessarily inconsistent with a diminished-capacity and/or voluntary-intoxication
defense.2
Given the weakness of the Commonwealth’s case and the strength of a potential
diminished-capacity and/or voluntary-intoxication defense, I believe the applicable pre-
AEDPA standard entitles Pirela to an evidentiary hearing, at a minimum, to allow him to
develop an adequate factual record to prove his entitlement to relief. Absent the benefit
of that hearing, my colleagues cannot evaluate the strength of Pirela’s defense vis-à-vis
the Commonwealth’s case, nor do they try to do so. Hendricks v. Vasquez, 974 F.2d
1099, 1110 (9th Cir. 1992) (“[A]ssuming the performance was deficient, we cannot
determine, without the benefit of an evidentiary hearing, whether that performance had
any probable effect on the outcome.”); Lawrence v. Armontrout, 900 F.2d 127, 131 (8th
Cir. 1990) (remanding for an evidentiary hearing “to determine whether trial counsel’s
failure to investigate and call alibi witnesses prejudiced [the] defense”); U.S. ex rel. Cross
v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (noting that a “court simply cannot
fulfill its obligation under Strickland v. Washington, 466 U.S. 668, 692 (1984) to assess
prejudice until the petitioner has met his burden of supplying sufficiently precise
information”).
present at the scene of the murder).
2 For instance, according to one psychiatrist, “[t]he words themselves, ‘I’m going
to kill you,’ may not totally indicate [an individual’s] mental state” because
“[s]ome . . . drugs produce what is called echolalia, which is simply repeating words.”

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Moreover, in denying Pirela this chance to prove his claim, the majority assumes
that a showing of prejudice is required. But “a complete lack of pretrial preparation puts
at risk both the defendant’s right to an ‘ample opportunity to meet the case of the
prosecution,’ and the reliability of the adversarial testing process.” Kimmelman v.
Morrison, 477 U.S. 365, 385 (1986) (citation omitted) (quoting Adams v. U.S. ex rel.
McCann, 317 U.S. 269, 275 (1942)). Depending on what Pirela could establish on
remand as to his counsel’s lack of preparation, this might not be the case. See also
Strickland, 466 U.S. at 692 (“[C]onstructive denial of the assistance of counsel altogether
is legally presumed to result in prejudice.”); United States v. Cronic, 466 U.S. 648, 659
(1984) (“[I]f counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing, then there has been a denial of Sixth Amendment rights that makes
the adversary process itself presumptively unreliable.”).
Finally, in determining the proper standard of prejudice and whether Pirela meets
that standard, we must place counsel’s failure to investigate in context of his appalling
performance in other respects. At trial counsel made no opening statement, introduced
no evidence, and called no witnesses. Before choosing to forgo a case-in-chief, counsel
put the onus on his illiterate and intellectually challenged client to figure out whether and
how to mount a defense, asking him in open court whether he “ha[d] . . . any witnesses[]
or any other evidence . . . to bring to the Court’s attention.” Counsel then proceeded to
apologize clumsily to the jury for his client’s failure to testify on his own behalf:
This is not easy, there’s no question. Each of you want to hear the other
side of the story, it’s human and it is very difficult for you only to hear the
Commonwealth’s side. However, I have talked to the defendant, my client,

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Simon Pirela, and he has good and sufficient personal reasons for not
taking the stand . . . .
Had counsel not done enough to damage his client’s case, his exceedingly short
closing argument at the guilt phase was factually and legally incorrect. Distilled to its
core, counsel’s main argument was that the jury should believe Lisa Colon’s testimony
that “she had at no time saw [Pirela] do anything to [the victim] Georgie” other than “a
little physical slapping or something . . . at the bottom of the stairs.”3 But despite at one
point prior to trial Lisa denied having seen Pirela do anything wrong, she in fact testified
at trial that Pirela retrieved the knife from the kitchen and ordered the victim killed.4
Clearly not having grasped the basic legal concept that accomplice and coconspirator
liability have nothing to do with who wields the knife,5 counsel came nowhere close to a
coherent theory of defense. He then ended by, in effect, conceding his client’s guilt,
telling the jury “this [was] not the kind of situation . . . an ordinary citizen . . . would
condone or be involved in—drugs, stabbings, and all the rest.”
“The very premise of our adversary system of criminal justice is that partisan
advocacy on both sides of a case will best promote the ultimate objective that the guilty
be convicted and the innocent go free.” Cronic, 466 U.S. at 655 (quoting Herring v. New
3 Counsel’s argument was also internally inconsistent, as he also argued to the jury
that it should reject Lisa Colon’s testimony as “worthless.”
4 Moreover, Lisa Colon did not testify that Pirela was not the one to stab the
victim in the basement. Rather, she simply testified that, subsequent to seeing Pirela slap
Dency and order him to “Kill Georgie,” she went back upstairs.
5 Indeed, the Commonwealth told jurors during its closing that the judge would
instruct them “that an accomplice of one person is as guilty as the person who commits
the vital act.”

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York, 422 U.S. 853, 862 (1975)). To deny Pirela an evidentiary hearing denies that
principle in my view. Because I believe that Pirela could establish either a reasonable
probability of a different result or that his lawyer’s performance was so egregious that a
showing of prejudice is not necessary to obtain relief, I respectfully dissent.

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